Judge orders hearing on Andrews County nuclear waste dump

AUSTIN — A judge ruled Tuesday that Texas’ environmental agency should have held a hearing about potential harm to nearby residents prior to licensing a remote radioactive waste dump owned by a top Republican contributor — and ordered that such a hearing now take place.

But the dump began receiving low-level nuclear waste April 27 in Andrews County near the New Mexico state line, and the company that owns it, Waste Control Specialists LLC, said it will continue operating normally while it appeals the judge’s decision.

The firm’s majority owner is Harold Simmons, a Dallas-based billionaire who has been a major donor to leading GOP presidential candidates as well as Texas’ Republican governor, Rick Perry.

The Texas Commission on Environmental Quality originally granted Simmons’ company approval in 2009 for the facility that is designed to become the final resting place for radioactive waste from 38 states and is built on 1,340 acres of scrub brush about 100 miles southwest of Lubbock. The Texas Legislature further sanctioned the dump with a law last summer, and the environmental commission signed off on it beginning to receive radioactive waste last month.

Those approvals came despite a pending Sierra Club lawsuit saying the state’s environmental agency licensed the dump without a “contested case hearing.” That would have allowed the Sierra Club to express fears the facility could contaminate air and groundwater, and to present the stories of two women who live nearby and were afraid of having their lives, homes and businesses adversely affected.

Marisa Perales, an attorney for the Sierra Club, argued Tuesday that the state environmental agency acted irresponsibly in approving the dump three years ago without holding a hearing on potential dangers.

“TCEQ absolutely did not take a hard look at the salient problems and certainly did not engage in reasoned decision-making when issuing the license,” Perales said.

The Sierra Club says the environmental agency’s staff originally recommended against licensing the dump — but that its director helped ensure it was approved and then left his post to work for Waste Control Specialists. Gov. Perry appoints the agency’s members.

The Texas attorney general’s office, as well as a lawyer for Waste Control Specialists, countered that academic experts concluded the site posed no environmental risks and disputed claims the agency’s staff originally opposed issuing the license. They also noted that winds around the dump blow away from populated areas more than 90 percent of the year, and that the region’s complex geology ensures the water table is not contaminated.

After three hours of arguments, state district Judge Lora Livingston sided with the Sierra Club and ordered a hearing.

Cyrus Reed, conservation director for the Lone Star Chapter of the Sierra Club, said the organization’s legal team was now determining its next move. He said its attorneys had planned to seek a temporary motion to stop further dumping at the waste facility pending a hearing — but that they chose to wait until Livingston’s ruling because, “we did not want to ask for something from her until we knew.”

“Clearly, regardless of what we do legally, it should be the obligation of the state to put the license on hold until we’ve had a chance to have this contest case hearing,” Reed said.

But Chuck McDonald, a spokesman for Waste Control Specialists, said “there will be no change in our operation of the Texas Low-Level Radioactive Waste Compact Commission disposal facility in Andrews County as Judge Livingston’s decision will be appealed.”

“We are confident that the license issued to WCS by the state of Texas will remain in place,” McDonald said in a statement.